Citation Nr: 0215027
Decision Date: 10/25/02 Archive Date: 11/01/02
DOCKET NO. 02-00 720 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Chicago,
Illinois
THE ISSUE
Entitlement to service connection for a right knee
disability.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
R. A. Speck, Associate Counsel
INTRODUCTION
The appellant had active duty for training from July 1985 to
October 1985, with service in the Illinois Army National
Guard from January 1992 to January 1998.
This matter comes before the Board of Veterans' Appeals (the
Board) on appeal from a February 2001 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Chicago, Illinois which denied the appellant's claim of
entitlement to service connection for a right knee
disability.
FINDING OF FACT
The competent and probative evidence of record shows that the
appellant does not currently have a right knee disability
that is related to service.
CONCLUSION OF LAW
A right knee disability was not incurred in or aggravated by
service. 38 U.S.C.A. §§ 101(2), (24), 1110, 1131 (West Supp.
2001); 38 C.F.R. §§ 3.6, 3.303 (2001).
REASONS AND BASES FOR FINDING AND CONCLUSION
The appellant is seeking entitlement to service connection
for a right knee disability. In substance, she contends she
has a current right knee disability which was incurred in the
line of duty during annual training with the Army National
Guard of Illinois. In the interest of clarity, after
reviewing generally applicable law and regulations and
describing the factual background of this case, the Board
will discuss the issue on appeal.
Relevant law and regulations
The Board has given consideration to the provisions of the
Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475,
114 Stat. 2096 (2000) (VCAA) [[codified as amended at 38
U.S.C. §§ 5102, 5103, 5103A, 5107]. The VCAA eliminated the
former statutory requirement that claims be well grounded.
Cf. 38 U.S.C.A. § 5107(a) (West 1991). The VCAA includes an
enhanced duty on the part of VA to notify a claimant as to
the information and evidence necessary to substantiate a
claim for VA benefits. The VCAA also redefines the
obligations of VA with respect to its statutory duty to
assist claimants in the development of their claims. See 38
U.S.C.A. §§ 5103, 5103A. Regulations implementing the VCAA
have been enacted. See 66 Fed. Reg. 45,630 (Aug. 29, 2001)
[codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159,
and 3.326(a)].
The VCAA is applicable to all claims filed on or after the
date of enactment, November 9, 2000, or filed before the date
of enactment and not yet final as of that date. In this
case, the appellant's claim was filed in August 2000 and
remains pending. The provisions of the VCAA and the
implementing regulations are accordingly applicable. See
Holliday v. Principi, 14 Vet. App. 280 (2001) [the Board must
make a determination as to the applicability of the various
provisions of the VCAA to a particular claim].
As set forth below, the RO's actions throughout the course of
this appeal have satisfied the requirements under the VCAA.
(i.) Notice
VA has a duty under the VCAA to notify the appellant and her
representative of any information and evidence needed to
substantiate and complete a claim. See 38 U.S.C.A. § 5103;
Quartuccio v. Principi, 16 Vet. App. 183 (2002) [a letter
from VA to an appellant describing evidence potentially
helpful to the appellant but not mentioning who is
responsible for obtaining such evidence did not meet the
standard erected by the VCAA].
The appellant was informed in a February 2001 letter and
rating decision of the evidence needed to substantiate her
claim, and was provided an opportunity to submit such
evidence. Moreover, in a December 2001 statement of the
case, the RO notified the appellant of regulations pertinent
to service connection claims, informed her of the reasons why
her claim has been denied, and provided her additional
opportunities to present evidence and argument in support of
her claim.
In a May 2001 letter, the appellant was informed of VA's duty
to obtain evidence on her behalf. The appellant was notified
that VA would obtain all relevant service medical records, VA
medical records and employment records. In addition, VA
indicated that it would request other relevant records held
by any Federal agency or department. In turn, the appellant
was informed of her duty to provide VA with enough
information to identify and locate other existing records,
i.e., names of persons, agencies, or companies that hold
relevant medical records, addresses of these individuals, and
the dates that such treatment was received.
The Board finds that the foregoing information provided to
the appellant satisfies the requirements of 38 U.S.C.A.
§ 5103 and Quartuccio in that the appellant was clearly
notified of the evidence necessary to substantiate her claim
for an increased rating. Under these circumstances, the
Board finds that the notification requirement of the VCAA has
been satisfied.
(ii.) Duty to assist
The VCAA also provides that VA shall make reasonable efforts
to assist a claimant in obtaining evidence necessary to
substantiate a claim for VA benefits, unless no reasonable
possibility exists that such assistance would aid in
substantiating the claim. The law provides that the
assistance provided by VA shall include providing a medical
examination or obtaining a medical opinion when such an
examination or opinion is necessary to make a decision on the
claim. An examination is deemed "necessary" if the record
does not contain sufficient medical evidence for VA to make a
decision on the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R.
§ 3.159.
The appellant's service medical records have been received,
and she was provided with a VA orthopedic examination in
November 2001. The Board finds that all known and
ascertainable medical records have been obtained and are
associated with the appellant's VA claims file. The
appellant and her representative have been accorded ample
opportunity to present evidence and argument in support of
this claim.
In summary, the Board finds that VA has done everything
reasonably possible to assist the appellant and that no
further action is necessary to meet the requirements of the
VCAA and the applicable regulatory changes published to
implement that statute. The Board will accordingly proceed
to a review of the merits of the issue on appeal.
Service connection
Applicable law provides that service connection will be
granted if it is shown that the veteran suffers from a
disability resulting from an injury suffered or disease
contracted in the line of duty, or for aggravation of a
preexisting injury suffered of disease contracted in the line
of duty, in active military, naval, or air service. See
38 U.S.C.A. §§ 1110, 1131 (West Supp. 2001); 38 C.F.R. §
3.303 (2001). Service connection may also be granted for any
disease diagnosed after discharge, when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. See 38 C.F.R. § 3.303(d)
(2001).
In order to establish service connection for the claimed
disorder, there must be (1) medical evidence of a current
disability; (2) medical, or in certain circumstances, lay
evidence of in-service incurrence or aggravation of a disease
or injury; and (3) medical evidence of a nexus between the
claimed in-service disease or injury and the current
disability. Hickson v. West, 12 Vet. App. 247, 253 (1999).
The determination as to whether these requirements are met is
based on an analysis of all the evidence of record and the
evaluation of its credibility and probative value. Baldwin
v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a).
The term "veteran" means a person who served in the active
military, naval, or air service, and who was discharged or
released therefrom under conditions other than dishonorable.
38 U.S.C.A. § 101(2) (West 1991 & Supp. 2001); 38 C.F.R. §
3.1(d) (2001). "Active military, naval, or air service"
includes any period of active duty for training during which
the person concerned was disabled from a disease or injury
incurred or aggravated in the line of duty, or injury
incurred or aggravated while performing inactive duty
training during which the individual concerned was disabled
or died from an injury incurred or aggravated in line of
duty. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a).
Standard of review
Once all the evidence has been brought together, the Board
has the responsibility to evaluate the record on appeal. See
38 U.S.C.A. § 7104 (West Supp. 2001). When there is an
approximate balance of the evidence regarding the merits of
an issue material to the determination of the matter, the
benefit of the doubt in resolving each issue shall be given
to the claimant. See 38 U.S.C.A. § 5107 (West Supp. 2001);
38 C.F.R. § 3.102 (2001). In Gilbert v. Derwinski, 1 Vet.
App. 49, 53 (1990), the United States Court of Appeals for
Veterans Claims (Court) stated that "a veteran need only
demonstrate that there is an 'approximate balance of positive
and negative evidence' in order to prevail." To deny a
claim on its merits, the evidence must preponderate against
the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996),
citing Gilbert, 1 Vet. App. at 54.
In evaluating the evidence and rendering a decision on the
merits, the Board is required to assess the credibility, and
therefore the probative value, of proffered evidence in the
context of the record as a whole. See Madden v. Gober, 125
F.3d 1477, 1481 (Fed. Cir. 1997).
Factual background
The appellant participated in annual training with the
Illinois National Guard from August 5, 1992 to August 19,
1992. On August 7, 1992, she reported that she had been
running during physical training when she felt an ache and
intense pain in her right knee. She was diagnosed with a
right knee sprain. A Statement of Medical Examination and
Duty Status indicated that the injury occurred during annual
training and in the line of duty.
Of record is a May 2000 report of medical history prepared
by the appellant in connection with enlistment in the Army
Reserve. She denied knee problems. The accompanying report
of medical examination did not document any right knee pain
or right knee disability. An August 2000 treatment record
reported that the appellant complained of right knee pain,
existing for seven years. No history of injuries or trauma
were noted.
A September 2001 statement from W.G.K., M.D., reported that
the appellant was being treated for a right knee
strain/tendonitis that "might" be related to an old injury
sustained in "1993".
The appellant was provided with a VA orthopedic examination
in November 2001. The claims file was reviewed in
conjunction with the examination. The appellant complained
that she had been unable to run since 1992, and had right
knee pain when marching and climbing stairs. Following a
clinical examination, the examiner found that the appellant's
knees had no specific local tenderness, effusion, synovial
thickening, or crepitus with motion. In addition, range of
motion was from 0 to 150 without pain or weakness in both
knees. X-rays revealed that both knees were normal, and no
evidence of any lack of endurance or lack of coordination was
noted. The examiner diagnosed the appellant with a past
history of knee pain with no objective findings on
examination to indicate any significant disability.
Analysis
The appellant is seeking service connection for a right knee
disability. For reasons and bases explained below, the Board
concludes that the appellant does not currently suffer from a
right knee disability and service connection is accordingly
not warranted.
As noted above, in order for service connection to be
granted, three elements must be met: (1) current disability;
(2) in-service disease or injury; and (3) medical nexus. See
Hickson, supra.
With respect to Hickson element (1), current disability, an
Army reserve physical examination in May 2000, as well as the
accompanying report of medical history prepared by the
appellant, were pertinently negative. Significantly, in
November 2001, following a clinical examination, the VA
examiner found no evidence of any lack of endurance or lack
of coordination for either of the appellant's knees, and X-
rays showed that both knees were normal. Ultimately, the
examiner diagnosed the appellant with a past history of knee
pain with no objective findings on examination to indicate
any significant disability.
It is clear that the appellant has complained of knee pain at
times, including in August 2000. However, no diagnosis was
noted, and the treatment report reflected that there was no
reported history of injury or trauma. While the Board does
not dispute that the appellant has complaints of pain,
symptoms such pain, absent a finding of an underlying
disorder, cannot be service-connected. See Sanchez-Benitez
v. Principi, 239 F.3d 1356 (Fed. Cir. 2001).
The Board has taken into consideration Dr. K.'s brief
statement in September 2001 that the appellant had right knee
strain/tendonitis. No basis was provided for that
assessment. The Board considers Dr. K.'s statement to be
outweighed by the other evidence of record, which indicates
that there is no diagnosed knee disability. This included
the May 2000 Army Reserve physical examination and in
particular the thorough VA examination in November 2001.
In short, a preponderance of the evidence of record does not
show that the appellant currently has a right knee
disability. Absent a showing of a current disability, a
grant of service connection may not be made. However, for
the sake of completeness, the Board will briefly address the
remaining two Hickson elements.
With respect to Hickson element (2), in-service injury,
medical records dated in August 1992 reflect that the
appellant was treated for right knee pain during annual
training. She was diagnosed with a right knee sprain at that
time. However, as noted by the RO, there is no indication
that the appellant was serving on active duty, including
active duty for training, at the time of the injury. Rather,
she was serving in the Illinois National Guard. Therefore,
in the absence of evidence that the appellant was performing
active service, as that term is defined in the law and
regulation above, there was no "in-service" injury. Hickson
element (2) has not been met.
Concerning Hickson element (3), in May 2001, Dr. W.G.K.
asserted that the appellant was being treated for right knee
strain/tendonitis that "might" be related to an injury
sustained in "1993". There are two significant problems with
this brief statement.
First, Dr. K.'s statement appears to have been based
exclusively on the appellant's own statement concerning an
injury. Dr. K. did not provide any specifics which would
lead one to believe that he had knowledge of the appellant's
entire medical history, including no medical evidence of knee
problems for a number of years after 1992 and in particular
the benign report of medical history and physical examination
in May 2000. The Court has held on a number of occasions
that a medical opinion premised upon an unsubstantiated
account of a claimant is of no probative value. See, e.g.,
Swann v. Brown, 5 Vet. App. 229, 233 (1993) [generally
observing that a medical opinion premised upon an
unsubstantiated account is of no probative value, and does
not serve to verify the occurrences described]; Reonal v.
Brown, 5 Vet. App. 458, 461 (1993) [the Board is not bound to
accept a physician's opinion when it is based exclusively on
the recitations of a claimant].
Second, Dr. K.'s statement is too vague and inconclusive to
serve as probative medical nexus evidence. The statement
refer to a clearly erroneous date and does not describe the
alleged injury at all. In addition, Dr. K's use of the word
"might" renders the statement valueless. The Court has held
that medical opinions which are speculative, general or
inconclusive in nature cannot support a claim. See Obert v.
Brown, 5 Vet. App. 30, 33 (1993); Beausoleil v. Brown, 8 Vet.
App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521,
523 (1996).
As to the appellant's own statements to the effect that that
she suffers from a right knee disability related to an August
1992 injury, it is now well-established that a lay person
without medical training, such as the appellant, is not
competent to opine on matters such as the diagnosis of a
claimed disability. See Espiritu v. Derwinski, 2 Vet. App.
492, 494-95 (1992); see also 38 C.F.R. § 3.159(a)(2)
["competent lay evidence" means any evidence not requiring
specialized education, training, or experience.]
In summary, for the reasons and bases expressed above, the
Board concludes that the preponderance of the evidence is
against finding that the appellant suffers from a current
right knee disability. The appeal is accordingly denied.
ORDER
Service connection for a right knee disability is denied.
Barry F. Bohan
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.